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Post by hod on May 15, 2013 17:46:54 GMT -5
Generally there are support staff who are to make sure that the medical records and other necessary evidence is in the file. In cases where the claimant is represented, ODAR pretty much expects the rep to make sure that the info is in the file or provide a reason why the evidence is not avialable. (Every so often youget a dotor who holds the medical files hostage for payment or something and the rep has to ask for help in getting the doc to cough it up.). ODAR send out various forms (or maybe they are all now on internet)asking the claimant for the names, addresses and latest visitation dates to their therapists/doctors/hospitals. ODAR does try to make sure it has all the information-but sometimes the claimant comes to a hearing with a list of doctors or hospitals that have not been previously mentioned. At that point the ALJ will generally tell the rep that he/she has x amount of time to get the information in or in the case of an unrepresented claimant, tell the person that ODAR will order the records. Other than maybe telling someone in the support staff that records are needed or requesting that a specific consultative examination should be ordered, the ALJ's do not usually communicate with providers.
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Post by hod on May 15, 2013 17:50:29 GMT -5
"I'm wondering about the video hearings mentioned by sbr. I assume that's a video conference. Since they are conducted in the ALJ's office, are they done via Skype/Facetime? How does that work?" Just to clarify, for the video hearings at the NHC, the ALJ conducts the hearing from their office on a desktop Polycom unit, but everyone else, including the claimant, the claimant's representative, and hearing reporter, are all in a hearing room in another location using the hearing room Polycom unit; VEs (vocational experts) and MEs (medical experts), if used, are called over the telephone. ALJs at hearing offices also conduct video hearings from the hearing rooms (or if you are HOCALJ, from your office, since HOCALJs have the same desktop Polycom equipment used by NHC ALJs in their offices) for "remote" locations, usually at SSA field offices that have a hearing room space. Otherwise, ALJs have to travel to the remote location and conduct in person hearings. For most hearing offices, the remote locations are within driving distance, so you typically do not stay overnight unless scheduling consecutive hearing days. The technology is fairly reliable, but there are some instances when there just aren't enough connections. For instance, if an NHC ALJ conducts a video hearing for a claimant who requires an interpreter (most judges use the telephone interpreter, rather than an in person interpreter because it requires a lot more leg work to get an in person interpreter scheduled, and most ALJs don't even know they need an interpreter for a case until a few days before the hearing), then you need to call the VE with your desktop phone, rather than calling thru the Polycom, or have the hearing reporter call the VE thru the Polycom in the hearing room (some hearing reporters know how to do it, but some don't). A different problem arises at hearing offices when you use the tele-interpreter, because sound quality isn't always the best through the hearing room speakerphone. Most offices that I know of have reserved parking for employees, which is an extra monthly parking fee, but there are also offices with free employee parking. Just depends on the area. Thanks sbr! I appreciate the thorough and informative reply. A further question about process: when the ALJ conducts the hearing, I assume he/she creates an exhibit list (we do this in our state administrative proceedings). Does the ALJ play a role in getting the evidentiary record (i.e., exhibits from the hearing) together for review on appeal? I may have misunderstood the question. The support staff prepares and marks the exhibits. Then if necessary, send the file to the Appeals Council if an appeal is requested. Nowadays the file is usually electronic-so it is just a matter of inputting the correct information to give the AC jurisdiction.
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Post by Administrator ALJ on May 15, 2013 18:19:57 GMT -5
I may have misunderstood the question. The support staff prepares and marks the exhibits. Then if necessary, send the file to the Appeals Council if an appeal is requested. Nowadays the file is usually electronic-so it is just a matter of inputting the correct information to give the AC jurisdiction.[/quote]
Nope, Hod, you nailed it. I guess I assumed that, like state agencies, the SSA didn't the money for the level of support staff to prepare the evidentiary record for the court (in the case of SSA, the AC). It's good to know that the responsibility doesn't rest with the ALJ whose case is on appeal.
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Post by hod on May 15, 2013 18:42:03 GMT -5
I may have misunderstood the question. The support staff prepares and marks the exhibits. Then if necessary, send the file to the Appeals Council if an appeal is requested. Nowadays the file is usually electronic-so it is just a matter of inputting the correct information to give the AC jurisdiction. Nope, Hod, you nailed it. I guess I assumed that, like state agencies, the SSA didn't the money for the level of support staff to prepare the evidentiary record for the court (in the case of SSA, the AC). It's good to know that the responsibility doesn't rest with the ALJ whose case is on appeal.[/quote] Well I am not saying that there is EVER adequate support staff for all that has to be done-but aside from making inputs into the case processing system and providing one's own notes regarding instructions for writing or possibly requesting that information be obtained-to my knowledge they have not started asking the ALJ's to prepare the case for hearing, notify the claimants and reps regarding dates, or contacting medical or other persons for updated evidence. But the times they are a changin' so you never can tell. :-)
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Post by westernalj1 on May 15, 2013 21:30:28 GMT -5
I really find it nonsense for people to say they can't hold hour long hearings and issue 500 dispositions a year. I hold hour to hour and a half hearings and have issued 600 decisions or so every year. If you only do 12 cases a week for only 45 weeks out of the year you've heard 540 cases and taken almost 2 months off. If you can't manage that you've chosen the wrong position. To say it is nonsense to be unable to do 500 dispositions a year is nonsense. Disposition rates depend on many factors, including the size of the files, whether the files include multiple duplicates, whether substantial amounts of evidence are submitted on the day of the hearing or afterwards, quality of decision drafts, number of dismissals, pay-rate, simple or more detailed writing instructions, and whether the particular ALJ reads the whole file. If a judge can issue 500 dispositions, hold hearings that last 1-1.5 hours, and take 2 months vacation, that ALJ should be very glad to be in an office with small files, little late evidence, well pulled files, and very good decision writers or they are more interested in numbers than doing a professional job, give the evidence a cursory review, and rely on the writers to figure things out and get the decision right. Without knowing the particulars of your office, I can't say which group you fall into. However, if it is the latter, you've chosen the wrong profession -- you should not be a judge or a lawyer. To all new ALJs (and current ones, too), please be professional. If you can do the numbers because you are lucky enough to be in an "easy" office, do them; but if you cannot do the numbers without taking unprofessional short-cuts, simply do not do the numbers.
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Post by bartleby on May 15, 2013 21:37:00 GMT -5
In fact, the Regulations say it is our responsibility to obtain medical evidence and develop the record. In our office management has decided that they will not obtain medical evidence if the claimant is repped, in spite of the Regulations. This means the Rep will walk in with 100-300 pages of medical evidence the day of the hearing or request we obtain it after the hearing, thereby slowing down the process and denying the claimant a full and fair hearing as we have not reviewed the evidence prior to hearing. The scary thing is that it is our responsibilty and not the Agency's. Ergo, if for some reason, the old stuff hits the fan, the Agency response will be...It's the ALJ job.. This is part of what the Union law suit is about. In the old days, cases were placed in ARPR (CPMS designation for the Judge to review the file and order all needed development prior to it being scheduled for hearing). Now it is scheduled for hearing before the ALJ even looks at it. By this time it is too late to do proper development on the case. It would appear that with some responses on here that some ALJ's feel that cases do not need proper development and just rush cases through. I'm sorry but you asked about the workings. This is an example of the way SSA pushes the workload.I could go on and on, but this should give you an example. When management is cornered they always say we are for quality, but they don't admit it is at the expense of quality.
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Post by Deleted on May 15, 2013 23:05:16 GMT -5
Sometimes towards the end of the month the instructions I received with the file was a simple
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Post by cafeta on May 16, 2013 1:03:58 GMT -5
In fact, the Regulations say it is our responsibility to obtain medical evidence and develop the record. In our office management has decided that they will not obtain medical evidence if the claimant is repped, in spite of the Regulations. This means the Rep will walk in with 100-300 pages of medical evidence the day of the hearing or request we obtain it after the hearing, thereby slowing down the process and denying the claimant a full and fair hearing as we have not reviewed the evidence prior to hearing. The scary thing is that it is our responsibilty and not the Agency's. Ergo, if for some reason, the old stuff hits the fan, the Agency response will be...It's the ALJ job.. This is part of what the Union law suit is about. In the old days, cases were placed in ARPR (CPMS designation for the Judge to review the file and order all needed development prior to it being scheduled for hearing). Now it is scheduled for hearing before the ALJ even looks at it. By this time it is too late to do proper development on the case. It would appear that with some responses on here that some ALJ's feel that cases do not need proper development and just rush cases through. I'm sorry but you asked about the workings. This is an example of the way SSA pushes the workload.I could go on and on, but this should give you an example. When management is cornered they always say we are for quality, but they don't admit it is at the expense of quality. But isn't the ALJ's responsibility to obtain medical evidence tempered by the claimant's burden to prove that he/she is disabled? I think while the ALJ has a duty to develop the record, this is shadowed by the claimant's burden, which they have at all times in the process, no?
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Post by cafeta on May 16, 2013 1:12:13 GMT -5
In fact, the Regulations say it is our responsibility to obtain medical evidence and develop the record. In our office management has decided that they will not obtain medical evidence if the claimant is repped, in spite of the Regulations. This means the Rep will walk in with 100-300 pages of medical evidence the day of the hearing or request we obtain it after the hearing, thereby slowing down the process and denying the claimant a full and fair hearing as we have not reviewed the evidence prior to hearing. The scary thing is that it is our responsibilty and not the Agency's. Ergo, if for some reason, the old stuff hits the fan, the Agency response will be...It's the ALJ job.. This is part of what the Union law suit is about. In the old days, cases were placed in ARPR (CPMS designation for the Judge to review the file and order all needed development prior to it being scheduled for hearing). Now it is scheduled for hearing before the ALJ even looks at it. By this time it is too late to do proper development on the case. It would appear that with some responses on here that some ALJ's feel that cases do not need proper development and just rush cases through. I'm sorry but you asked about the workings. This is an example of the way SSA pushes the workload.I could go on and on, but this should give you an example. When management is cornered they always say we are for quality, but they don't admit it is at the expense of quality. But isn't the ALJ's responsibility to obtain medical evidence tempered by the claimant's burden to prove that he/she is disabled? I think while the ALJ has a duty to develop the record, this is shadowed by the claimant's burden, which they have at all times in the process, no? I don't mean to suggest an ALJ should punt on their responsibilities, but there is, or should be, a balance in the process, otherwise claimant's reps can intentionally subvert the system with those 100-300 pages of medical evidence produced on the day of the hearing, guaranteeing a slow down in the process. It is almost as bad as the medical evidence that just miraculously shows up after the final decision, and then submitted to the AC, or a subsequent favorable to the court! That's what really mucks up the process! At least an orderly process!
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Post by bartleby on May 16, 2013 5:56:00 GMT -5
Ah ha!! You have discovered Catch 22. It is the claimant's burden, but then CFR 404.1512 notes, "(d) Our responsibility. Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application. We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." Often our various Reg's contradict or at least confuse most issues. The problem is, we are the Judges and we get blamed when things don't go right even when you have no control or conflicting Regs..
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Post by ncatty007 on May 16, 2013 7:36:32 GMT -5
Ah ha!! You have discovered Catch 22. It is the claimant's burden, but then CFR 404.1512 notes, "(d) Our responsibility. Before we make a determination that you are not disabled, we will develop your complete medical history ... Interesting. I admit I have not read the entirety of the regulation you cite, but as a civil litigator for 15 years that sounds a lot like advocacy to me. It also looks to be what amounts to a presumption of disability, or at least a regulation that places a greater burden on denial of benefits as compared to allowing them. The SSA disability system sounds a lot like worker's comp from what I've heard from attorneys that I know who do comp work, but with even less of an adversarial nature than comp. It seems to be basically a system that is set up primarily for the orderly processing of the payment of claims, as opposed to the actual adjudication of them. Would you consider that a fair generalization?
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Post by maquereau on May 16, 2013 7:48:14 GMT -5
The regulations say that the claimants bear the burden of proof and that they MUST PROVIDE EVIDENCE of their alleged impairments and how the impairments affect their ability to function. In reality, this means nothing. The "duty to develop," or "duty to make the claimant's case for him" trumps this pretend burden of proof every time. As for meeting the production quotas, I have found that it can be done with massive donations of private/uncompensated time. However, I believe in reading every bit of the file, taking substantial notes, and providing detailed instructions. This, I suppose, can be construed by management as a sort of vanity given that, as others have noted, we are operating in a factory environment as opposed to a judicial environment. Any mention by management of the quality of our product is, you can be assured, grudging lip service.
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Post by marten77 on May 16, 2013 8:13:29 GMT -5
But isn't the ALJ's responsibility to obtain medical evidence tempered by the claimant's burden to prove that he/she is disabled? I think while the ALJ has a duty to develop the record, this is shadowed by the claimant's burden, which they have at all times in the process, no? I don't mean to suggest an ALJ should punt on their responsibilities, but there is, or should be, a balance in the process, otherwise claimant's reps can intentionally subvert the system with those 100-300 pages of medical evidence produced on the day of the hearing, guaranteeing a slow down in the process. It is almost as bad as the medical evidence that just miraculously shows up after the final decision, and then submitted to the AC, or a subsequent favorable to the court! That's what really mucks up the process! At least an orderly process! These are all tactics employed by certain reps (not all) for obvious strategic and financial reasons. Dumping the extra 300 pages on the judge the day of the hearing will obviously slow down the process for a while. Some judges scan through the stuff right before the hearing to get a sense of it, others have it marked, submitted and consider it later in light of the claimant's testimony. In either situation, there is no telling when the judge may be able to get back around to the climant's file again for an in depth review. It might be right after the hearing or a month later. In any event, the extra time helps ensure the rep is likely to get a fee of some sort. Reps that sit on MER and then submit to the AC after an unfavorable decision also get the benefit of building a fee. It obviously takes a while for the AC to issue a decision for a remand, but once it gets back to the judge for a favorable determination, another year has probably elapsed that can build into the fee. With the decrease in the backlog, I have heard many a rep complain that the increased turn around time is cutting into their fees. This will likely spur continued practices like these. It can be somewhat annoying and frustrating to see new medical records with fax time stamps to the rep's office from well before the date of the unfavorable decision being called "newly discovered evidence."
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Post by Administrator ALJ on May 16, 2013 10:02:32 GMT -5
I don't mean to suggest an ALJ should punt on their responsibilities, but there is, or should be, a balance in the process, otherwise claimant's reps can intentionally subvert the system with those 100-300 pages of medical evidence produced on the day of the hearing, guaranteeing a slow down in the process. It is almost as bad as the medical evidence that just miraculously shows up after the final decision, and then submitted to the AC, or a subsequent favorable to the court! That's what really mucks up the process! At least an orderly process! These are all tactics employed by certain reps (not all) for obvious strategic and financial reasons. Dumping the extra 300 pages on the judge the day of the hearing will obviously slow down the process for a while. Some judges scan through the stuff right before the hearing to get a sense of it, others have it marked, submitted and consider it later in light of the claimant's testimony. In either situation, there is no telling when the judge may be able to get back around to the climant's file again for an in depth review. It might be right after the hearing or a month later. In any event, the extra time helps ensure the rep is likely to get a fee of some sort. Reps that sit on MER and then submit to the AC after an unfavorable decision also get the benefit of building a fee. It obviously takes a while for the AC to issue a decision for a remand, but once it gets back to the judge for a favorable determination, another year has probably elapsed that can build into the fee. With the decrease in the backlog, I have heard many a rep complain that the increased turn around time is cutting into their fees. This will likely spur continued practices like these. It can be somewhat annoying and frustrating to see new medical records with fax time stamps to the rep's office from well before the date of the unfavorable decision being called "newly discovered evidence." I was under the impression that attorneys representing disability claimants worked on contingency (especially since some of the claimants could be in for a significant payout). Is this not the case? Also, it seems to me that any attorney doing a data dump on the ALJ the day of the hearing is risking the wrath of said judge. As said judge will ultimately be deciding their client's case, one would think that the attorney would prefer to stay on good, professional terms with the trier of fact. One question about obtaining medical records: has the large scale migration of doctors' offices and hospitals to digital records removed some of the delay in accessing claimant data? Just curious how that has affected existing case processing for ALJs.
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Post by hod on May 16, 2013 10:33:46 GMT -5
Part of the problem is that the "contigency" fee is based upon the amount of the claimant's back benefits. Generally the rep is awarded 25% or (what is it now 7000 0r 6000) dollars WHICHEVER is lower. So you can see that for 6000 to get paid, one must have a client with back benefits of 24,000. So a well processed case that goes through the agency quickly, is not as likely to have the maximum in benefits and occasionally a rep is perceived as trying to slow the process down to make the fee larger. Obviously the answer is to have some incentive to work the case quickly and provide evidence at the earliest point. I don't know what that would be. But I do know that there are many cases where ridiculous amounts of medical evidence, mush of it old and repetitive is dumped at the hearing. I believe the NY region is the only one that has some kind of special process whereby evidence submitted after a certain date needs to have been "unavailable" earlier.
It is also true that many reps sandbag another dump of evidence at the AC stage. This is in hopes of getting another bite at the apple, because if there is evidence relevant to the time frame-the AC may pay the case or minimally send it back for another hearing. Who know-maybe a new judge will get it (particularly when there has been a video hearing from one of the hearing centers. So needless to sy there are problmes. Everyone can see the problems, but it is really answers we need. Every attempt to modify the program requires an act of congress practically. At minimum a study, time to get comments, redrafting and other long involved processes. This is why the actions taked to improve disability always seem to involve changing work management processes. It is easier. Unfortunately, such qucik actions cause things like HPI (Hearing Process Improvement) or automatic scheduling which makes pre-hearing development of a case difficult.So it goes. Government in action. It is the same everywhere. I really do not know the answer. But I think if Congress wannted to-they could look at the situation and come up with a better method of doing business. Here is one for a start-SSA hardly ever does re-evaluations of cases-this means once you are paid, you are likely to get paid for a very long time regardless of whether you recovered or not (think 20 year old in a car accident). Getting money back on overpayments is unbelievable difficult and fraud investigations are basically underfunded. In some ways-I think these three activities would pay for thenselves in the long run. But I could be wrong. In the meantime we muddle through as best we can with what we've got.
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Post by Administrator ALJ on May 16, 2013 12:52:14 GMT -5
Thanks, Hod; not having worked at SSA or talked with any practitioners appearing before the agency, this is all new information for me.
It sounds like the NY region has the right idea. What I'm confused about is how the procedure requiring unavailability of evidence before it's dumped at hearing can be different by region. Seems like that would promote forum shopping. Also, if there's that much discretion, why don't the other regions hop on board. Not only would this aid judges in keeping control of the case at hearing, it would also (one hopes) address a bit of the backlog problem.
How much discretion does each office have in how the hearings and cases are processed? Further, how much discretion do judges have in how they conduct disability hearings?
A little off of this topic...do SSA ALJs also hear survivor benefits cases? I'm assuming these occur much less often since its consanguinity can be proven with much more certainty than alleged injury/disability.
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Post by hod on May 16, 2013 13:10:08 GMT -5
Very little discretion in how cases are processed. The NY region is a prototype or model region where they try out a particular method of doing things to see what kinks show up and what the complaints are. we have other regions doing no reconsideration and going directly from initial to a hearing. So far as I know these prototype deals get started and almost never go away and rarely get adopted throughout the land. Yes we have a national program, but like federal courts, some regions (circuits) are more claimant friendly than others. Also-as any one knows who practiced in state courts, some judges are more defense friendly. So there is a bit of forum shopping. That is the fun of the hearing centers-if one agrees to have a hearing by video from a judge in a hearing center-the good news is that the hearing will probably be held quicker and perhaps the decison will be written quicker (I don't know about that last)-the bad news is that it is a crap shoot on what judge you get. I guess everthing evens out in the end. It is a flawed system, but it cannot just be torn down because too many people rely upon it. It would just be nice if it dodn't take so long to make modifications or recognize the changes that have gone on in the world since the 1970's with regard to job requirements and numbers.
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Post by philliesfan on May 16, 2013 15:10:22 GMT -5
NRG ALJ: SSA ALJs do hear retirement and survivor cases and SSI non-disability cases occasionally. In almost 2 years, I have heard 3 or 4 of them. They are a nioe break from the disability work load and permit me to actually do some research.
As to conducting hearings, this varies from ALJ to ALJ. I know some who let representatives ask most of the questions and some, like me, who ask most of them. My hearings generally run 45 minutes to an hour, but sometimes longer and sometimes shorter, but I know ALJs who hold shorter hearings and some who routinely hold 1-1 1/2 hour hearings. I am in a state that has no reconsideration, so the files probably have less medical evidence than states that do have reconsideration.
Most ALJs use vocational experts in all adult disability cases and some do not. Some ALJs use a lot of medical experts. I rarely do unless order to do so by a court or the Appeals Council. Some ALJs request a lot of consultative examinations and some do not. All of this is within the ALJ's control. You also have control over the conduct of the hearing.
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Post by onepingonly on May 16, 2013 17:02:08 GMT -5
In fact, the Regulations say it is our responsibility to obtain medical evidence and develop the record. ... The scary thing is that it is our responsibilty and not the Agency's. Ergo, if for some reason, the old stuff hits the fan, the Agency response will be...It's the ALJ job.. The regulations define "our" to mean the Agency. 404.1502. I'm not aware of any regulation that says the ALJ has to get the evidence. I know some reps argue this, but I've never seen them cite a regulation. The claimant always has the burden of proof, even if the Commissioner has a limited burden of production at Step 5, if it gets that far. Whether anyone inside or outside the Agency "blames" the ALJ if the record is not developed, well, they're entitled to their opinion, but it has no teeth in the absence of a binding mandate. I'm not aware of any ALJ who lost the job or suffered other adverse employment action due to the ALJ's alleged failure in some duty to develop evidence. I don't know every ALJ's disciplinary history. I'm open to enlightenment.
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Post by trekker on May 16, 2013 18:58:40 GMT -5
There are many reasons why claimants cannot provide medical records including costs (some claimants have no income and even if a state limits the what a provider can charge, it can add up) and lack of health insurance (ever gotten cancer, been treated in the ED but then sent on your way because there is no longer an emergency -- try getting someone to treat you for free). But in any case, please see 20 CFR 404.1512(d) and 416.912(d). Also, Hallex I-2-6-56. SSA has a duty to at least help develop the record (DDS usually does this) and the claimant has to cooperate in that process.
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